Commentary Magazine


Topic: Marbury v. Madison

The Week Obama Jumped the Shark

In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”

Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.

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In a press conference on Monday, President Obama said, “I’d just remind conservative commentators that for years, what we’ve heard is the biggest problem on the bench was judicial activism or the lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. And I’m pretty confident that this court will recognize that and not take that step.” Obama went on to say that the court would take an “unprecedented, extraordinary step” if it overturns the law because it was passed by “a strong majority of a democratically elected Congress.”

Set aside the fact that the House, despite a huge Democratic majority, passed the Patient Protection and Affordable Care Act by a margin of 219-212, hardly a “strong majority.” In fact, it barely qualifies as a plurality. Let’s turn instead to the substance of what the president said.

Obama, a former community organizer who is perhaps unaware of the finer points of the law, might want to acquaint himself with an obscure  19th century case, Marbury v. Madison, which established the doctrine of judicial review and grants federal courts the power to void acts of Congress that are in conflict with the Constitution. What Obama describes as “unprecedented” has, in fact, been done countless times since 1803.

Then there’s Obama’s confusion about judicial activism. It is not, as he insists, simply the act of overturning an existing law; it is when judges allow their personal views about public policy, and not the Constitution, to guide their decisions and often invent new rights out of thin air. For Justices to invalidate a law they deem to be unconstitutional is precisely what the Supreme Court is supposed to do. (“No legislative act … contrary to the Constitution, can be valid,” is how Alexander Hamilton put it in Federalist #78.) If one takes Obama’s words literally, he believes an unjust and unconstitutional law, if passed by a strong majority of a democratically elected Congress, cannot be overturned.

What the president said, then, was so ill-informed, so ignorant, that people assumed he must know better. There’s no way we can know. But whatever the case, this has been quite a bad stretch for the president. His comments about the Supreme Court, when combined with his astonishingly dishonest attack on the House GOP budget (see here for more), portray a president who is living in a fantasy world — a place where facts and history are inverted, lies become truth, where everything is subordinated to ambition and you simply make things up as you go along. Nietzsche referred to this mindset as the “will to power.” In American politics it’s known as The Chicago Way.

I don’t know what the political effect of all this will be. But intellectually, this is the week where Barack Obama jumped the shark. In a deep, fundamental way, he is no longer a serious man. Nor an honest one. His public words are now purposefully bleached of truth. And that is a painful thing to have to say about an American president.

 

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Presidential Chutzpah

Presidential chutzpah. Well, at least you can admire him for that perhaps. After all, someone who graduated from Harvard Law School, edited the Harvard Law Review, and taught constitutional law at the University of Chicago Law School must be familiar with Marbury v. Madison. As Wikipedia explains, it’s an important case:

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it “unconstitutional.” The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

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Presidential chutzpah. Well, at least you can admire him for that perhaps. After all, someone who graduated from Harvard Law School, edited the Harvard Law Review, and taught constitutional law at the University of Chicago Law School must be familiar with Marbury v. Madison. As Wikipedia explains, it’s an important case:

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it “unconstitutional.” The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

And yet President Obama yesterday implicitly claimed never to have heard of it, allowing him to say regarding Obamacare that it would be an “unprecedented, extraordinary” step for the Supreme Court to overturn legislation passed by a “strong majority of a democratically elected Congress.” The precedents go back 209 years and, as Jonah Goldberg pointed out on “Special Report” last night, the Supreme Court has been overturning acts of Congress ever since, on average every 16 months. So overturning Obamacare would be about as unprecedented as the sun rising in the east tomorrow morning. Actually the precedents go back even further, as Alexander Hamilton mentioned the power of judicial review in Federalist Paper 78, written in 1788. The last president to seriously challenge the court’s power to overturn an act of Congress under the doctrine of judicial review was Andrew Jackson, who famously said after one decision he didn’t like, “The court has made its decision; now let it enforce it.”

The court has overturned laws based on the Commerce Clause as recently as 1995 (United States v. Lopez) and 2000 (United States v. Morrison). Both of those were relatively minor cases, although significant for putting limits on federal power under the Commerce Clause for the first time since the early New Deal. But major pieces of legislation have also been overturned. The National Recovery Act of 1933 was the last piece of legislation passed during the “Hundred Days.” Its purpose was, essentially, to cartelize the entire United States economy under the direction of the National Recovery Administration (the NRA, whose symbol was the famous blue eagle). Franklin Roosevelt called the legislation “the most important and far-reaching ever enacted by the American Congress.” But that didn’t stop the Supreme Court from overturning it in May 1935, by a vote of 9-0.

The National Recovery Act passed the House by a large majority and the Senate by 46-39. The “strong majority” mentioned by Obama in the passage of Obamacare did not exist. It passed the Senate 60-39 on Christmas Eve, when the Senate, briefly, had a filibuster-proof majority. But by the time a vote neared in the House, that filibuster-proof majority had vanished with the election of Scott Brown in Massachusetts. So the House had to pass the Senate bill unchanged in order to get it to the President’s desk. Only much arm-twisting and deal-making allowed the bill to pass the House with a majority of only seven votes, 219-212. It garnered not a single Republican vote in either house, the first time so important a piece of legislation was passed on a totally partisan basis.

As I said, one can only admire his chutzpah. It seems there is simply no lie President Obama will not tell in pursuit of his agenda. He can count on the mainstream media buying it, but will anyone else?

 

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